While a high-level delegation from the Nepalese Government has been busy defending Nepal’s record on torture before the United Nation’s Committee Against Torture during its 35th session, developments concerning a case illustrate the brutal nature of torture and the widespread impunity in the country that the delegation in Geneva have been at pains to deny.
The Asian Legal Resource Centre (ALRC) urges the members of the Committee Against Torture to consider the following situation as they prepare the Concluding Observations with relation to their consideration of Nepal’s second periodic report to the Committee. While the case is horrific in itself, it also typifies many of the overriding problems that prevail in Nepal, notably: arrest and illegal detention by the Royal Nepalese Army; forced disappearance; brutal torture, including that resulting in custodial death; and the total impunity that the perpetrators are able to enjoy for these grave acts.
On November 7th, 2005, ALRC submitted a document to the Committee Against Torture, in which it highlighted the State of Nepal’s significant failure to comply with its international obligations under the Convention Against Torture, notably since the Royal takeover on February 1st, 2005. Tragically, the following case provides further evidence of this. The ALRC supplemental document can be downloaded from ALRC’s website at:
http://www.alrc.net/PDF/ALRC_CAT_Nepal_2005.pdf
The case of Maina Sunuwar
15-year old Maina Sunuwar was arrested by a group of around 15 Royal Nepalese Army personnel at her home in Kharelthok, Kavre, on February 17th, 2004. The soldiers were looking for Maina’s mother, Devi Sunuwar, who had reportedly witnessed the gang rape and killing of her niece by security personnel earlier the same month (please see previous AHRC urgent appeal at http://www.ahrchk.net/ua/mainfile.php/2004/625/). Maina’s family members attempted to establish her whereabouts, and visited the Lamidada army barracks, the Dhulikhel Police Office and Shanti Gate army barracks, but officials repeatedly denied that she was being detained therein. Witnesses, however, alleged that two girls had been brought into the Shanti Gate army camp on the morning of February 17th, 2004, in a vehicle reporteldy driven by an officer named as Captain Niranjan.
Reports indicate that Maina was blindfolded, tied to trees and beaten for hours. On April 21st, 2004 a national weekly published a letter, allegedly signed by members of the army, in which it is claimed that Maina was tortured and killed as a result of electric shocks applied to her breasts. The Royal Nepalese Army has since claimed that Maina was killed while trying to escape custody. The Police also claim to have conducted a post mortem examination and then handed Maina’s body over to her family. Maina’s family members have, however, not yet received her body and there is absolutely no evidence that a post mortem examination has been conducted. The members of Maina’s close family have been forced into hiding due to threats to their lives, as the army continues to search for her mother, Devi Sunuwar, in particular.
Impunity: the system of collusion between the army and the police
Since her arrest and detention, the security forces have made a number of conflicting claims as to the whereabouts and personal integrity of Maina Sunuwar, ranging from denying her detention to her having been killed in an “encounter” with security personnel. In October 2005, however, the army stated publicly that Maina had been found dead in an unspecified army barracks, and that three officers – Colonel Babi Khatri, Captain Amit Pun and Captain Sunil Adhikary – had been found guilty of improper conduct in relation to her killing during a military court martial, and were sentenced to between 6 months and 2 years imprisonment. The question of improper conduct reportedly related to the fact that the officers did not a conduct post mortem examination or hand the body over to the victim’s family. However, in cases of custodial deaths, the burden of proof is on the authorities to show that the death was not related to abuses on the part of state agents. In this case, the issue of the causes of and the responsibility for Maina’s death have not been addressed.
Furthermore, under Nepalese laws, including the Army Act of Nepal, military courts do not have jurisdiction over cases such as rape and murder of civilians by military personnel. Such cases have to be tried in regular general, civilian courts. Maina’s mother, who was accompanied to the District Police Office (DPO) in Kavre, Dhulikhel by a number of NGO representatives as well as a UN Office of the High Commissioner for Human Rights envoy, called for an investigation to be launched and attempted to lodge a complaint concerning her daughter’s death. However, the officers at the DPO refused to register the First Information Report (FIR) as required by the State Cases Act, under which police officers have to register any information regarding a crime of this nature, and have to provide the receipt of the registration to those who provided the information.
When the lodging of the FIR was attempted, Deputy Superintendent of Police (Dy.S.P.) Sanjaya Singh Basnet reportedly said: “I will not register this case and will not even give you the reason as this is related to the army and it is sensitive, if you are not satisfied you can complain to the authority higher than me.”
A complaint was then registered with the Chief District Officer (CDO), Shambu Koirala, at the District Administrative Office, Kavre, Dhulikhel. The CDO, however, claimed that his registering the complaint had no legal validity; as such complaints have to be recorded by the police. This is not correct: under the provisions of the States Cases Act, if a police officer refuses to register a complaint, the complainant can go to a higher police authority or the CDO to have the complaint registered. The CDO reportedly offered to help Maina’s mother to get compensation and warned against making further complaints as this risked causing retaliation by the security forces.
International intervention required
This case clearly illustrates the systemic obstacles that hinder the making of complaints and the investigation and prosecution of the alleged perpetrators of even the most serious human rights abuses in Nepal. While torture is systematically used by the armed forces, impunity for these actions is consciously enabled through a system of collusion with the police. The United Nations Committee Against Torture is urged to consider this phenomenon when producing its Concluding Observations following its consideration of Nepal’s second periodic report on torture.
ALRC recommends that the authorities in Nepal:
” Immediately order the police authorities to register Devi Sunuwar’s complaint concerning the death of her daughter, Maina Sunuwar;
” Launch a prompt and impartial investigation into Maina Sunuwar’s death, and bring the alleged perpetrators before a competent civilian court. If proven guilty, the perpetrators must be sentenced under the provisions of the law and the victim’s family must be awarded prompt and adequate reparation;
” Guarantee the personal integrity at all times of Maina Sunuwar’s family and all persons assisting them in lodging the complaint concerning Maina’s death;
” Ensure that all human rights abuse complaints are systematically recorded by the police, as required by the State Cases Act, regardless of whether the alleged perpetrators are from the police, the armed forces or any other state actor group;
” Guarantee that all allegations of torture, rape and custodial death involving the armed forces are fully and transparently investigated by an independent body, and are tried before civilian courts;
” Order an end to the unconstitutional and illegal practice of detention of civilians by the armed forces.
ALRC also wishes to highlight the further risk to non-governmental organizations (NGOs) working on the issues of torture and impunity in the country that is posed by the so-called code of conduct for NGOs that is currently being discussed in Nepal. Such a code, if put in place, will serve to drastically curtail the freedom of civil groups to engage in independent activities. It will add further to the repressive practices already in place and will be particularly detrimental to the freedoms of expression and association as well as the effectiveness of civil society in pursuing their activities. For more on this issue, please go to: http://www.ahrchk.net/statements/mainfile.php/2005statements/368/.
